Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments:
The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative constitutional values. Therefore many liberal theorists advocated various forms of judicial restraint, judicial minimalism, popular constitutionalism, and, in general, taking the Constitution away from the courts.
Eric is right that if the balance of power in the federal courts changes dramatically, liberal constitutional theories that focus on the courts will make a comeback, as will the work of earlier Warren Court defenders like John Hart Ely and Ronald Dworkin. Who knows? Perhaps Laurence Tribe—or his appointed successor—will take up his famous treatise once again.
Let’s pause to examine this claim. What Jack appears to saying—admitting—is that the liberal constitutional theories have been strategic. The liberals are not arguing what they believe as a matter of first principle. They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.
Some years ago, Sai Prakash reviewed a Cass Sunstein book advocating judicial minimalism. Sai called out Cass, claiming that Cass only wanted narrow judicial decisions when the conservatives were in the majority. When the liberals were in the majority, Cass would replace judicial minimalism with judicial activism.
Sai’s claim was thought to be quite provocative by some at the time, since it accused Cass of a type of dishonesty. But unless I misinterpret him, Jack is admitting that Sai was generally correct. (Jack does not mention Cass Sunstein by name but he does mention his theory of judicial minimalism.)
It is not merely Jack who acknowledges this argument. In the USC Law Journal, another prominent liberal constitutional theorist defends something like this approach. Dick Fallon, in what is a quite interesting article entitled “How to Choose a Constitutional Theory,” argues that it is permissible (and perhaps even required) that we adjust our constitutional theory to the circumstances of the time. In particular, we should take into the personnel who predominate in the judiciary. In other words, how judicial discretion we advocate should depend on whether we believe the judiciary will pursue what we regard as the correct values. Dick argues that one needs to be careful about such adjustments. If one is too short term about these matters, then it risks undermining our constitutional culture, with people accusing one another of holding unprincipled, strategic theories.
Think about what the liberals did in this country. During the New Deal, the liberals advocated judicial restraint: The judiciary should not enforce enumerated powers federalism, separation of powers restraints on delegation, or substantive due process. When the liberals came to dominate the judiciary, they implemented that judicial restraint vision. But then they did something else: They forgot judicial restraint in the areas where it interfered with liberal values. Enumerated powers federalism was retained, but substantive due process was reinvented in the form of protecting liberal values. Economic values, such as liberty of contract and property, were not protected for no good reason other than liberals didn’t like it.
Many people on the Right believe that the liberals have been and continue to be strategic about such matters. But since it involves attributing a kind of bad faith to the other side, it is often not asserted. But in this case, the argument is made by the liberals.